This Stars and Stripes article discusses the case of Petty Officer 3rd Class Austin Greening, who is facing a court-martial for a homicide that was already adjudicated in state court. The reported rationale for the successive prosecution is that the sentence adjudged by the civilian court is too light:
During a the military equivalent of a preliminary hearing Friday, Lt. Adam Partridge said another trial is needed “in the interest of justice.” He also said the victim’s parents were “extraordinarily displeased” with the result of the civilian court process.
The prosecution arises out of a 2013 shooting that was prosecuted by Virginia authorities in 2014, leading to convictions of second degree murder and use of a firearm in commission of a felony (link to news report). However, the judge granted a post-trial motion for a new trial based on issues with the autopsy report (link to news report). The accused and the Commonwealth of Virginia then reached a plea agreement, with the accused pleading guilty to involuntary manslaughter and receiving a sentence of three years imprisonment with all but six months suspended (link to news report).
The case highlights the military’s non-adherence to the DOJ policy generally prohibiting successive federal prosecutions, known as the “Petite Policy.” The Petite Policy comes from the case of United States v. Petite, 361 U.S. 529 (1960), in which an individual was subjected to successive federal prosecutions in different Districts for offenses arising out of a single criminal transaction. At the Supreme Court, the Solicitor General stated:
it is the general policy of the Federal Government ‘that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.’
Petite v. United States, 361 U.S. at 530-531. Current DOJ policy is very specific on this point:
This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.
United States Attorneys’ Manual (USAM), Chapter 9-2.031 (“Dual and Successive Prosecution Policy”).